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February 19, 2009

Long and thoughtful ACCA analysis by Eleventh Circuit

The Supreme Court in a series of recent opinions has provided new wisdom on what sorts of prior offenses qualify as a "violent felony” under the Armed Career Criminal Act.  Today, the Eleventh Circuit has a long and thoughtful discussion of all the new ACCA jurisprudence via a decision in US v. Harrison, No. 08-12636 (11th Cir. Feb. 19, 2009) (available here).  Harrison addresses the "question of whether a prior state conviction for violating subsection 2 of Florida’s willful fleeing statute" qualifies as a violent felony under ACCA.  Here is one of many statute observations from the Eleventh Circuit's analysis:

A closer examination of James and Begay demonstrates that Chambersis simply the latest in a line of Supreme Court cases that have used hard data to assist in making risk assessments under the ACCA’s residual clause.  Although calculating risk “does not require metaphysical certainty,” James, 127 S. Ct. at 1597, it appears that statistical evidence now plays a role in assessing risk for non-enumerated crimes under the residual clause [used in ACCA to define what qualifies as a "violent felony"].

February 19, 2009 at 03:19 PM | Permalink


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This seems like an extremely long and repititive ruling given the narrow issue that it covers. Hard to argue against though. Also nice to see lower courts taking SCOTUS pronouncements about the ACCA seriously.

Posted by: Soronel Haetir | Feb 19, 2009 6:18:28 PM

I wish the SCOTUS (whatever that is) would look at Kansas's sentencing statutes and practices on sentence enhancements based on old, old juvenile adjudications. Juvenile court was completely different back in the early 80's. My son was urged to plead guilty to something he didn't do in 1983. He was living with his father who is now dead. Now, he has been accused of a crime, and that one old juvenile adj. was used to raise his criminal history score, and then they used it again to double the length of the sentence. Never mind that he was an upstanding citizen for 25 years. It was explained to me that this is due to "recividism". It seems insane to me that a very old juvenile adjudication can be used this way. In 1983, his father was told that his record would be expunged, and "It would be as though it had never happened." Then, later, they changed the laws, and they say it isn't ex post facto, since this is just a new sentencing law, (not a punishment). He has been sentenced to 24 years, and due to several illnesses such as diabetes and congestive heart failure, 24 years is a life sentence. Kansas is a blood thirsty place, with the harshest right wing Rep's running everything. Back in those days, children had to do what the parent told them to do, and my son's father wanted to save himself some money, so he told his minor son to plead, assuring him that nothing bad would happen to him. Juvenile court was used to "help" kids, more than a place to punish them as it is nowadays. This sentencing law is so unjust.

Posted by: Donna | Feb 20, 2009 2:12:25 PM

This is a very well written and well thought-out case. There is a case pending in the 4th Circuit with exactly, and I mean exactly, the same issue. But the 4th Circuit has a recently-decided case, Roseboro, that may conflict with Harrison. In the long run, however, the position of the Supreme Court is untenable. That is, under the current state of the law they are going to be obliged to issue an opinion from the Supreme Court on every single subsection of every single state statute, as to whether that subsection constitutes a violent crime. This is unworkable. Change has to come, and sooner rather than later.
Defense Attorney

Posted by: Michael Chesser | Feb 23, 2009 11:10:17 PM

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